Category: Race

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Will America’s Civil War Ever End?

Seems I prematurely announced my departure as a guest blogger last week.  Concurring Opinions has kindly asked me to stay on for another month, so here is my first offering for May.

It recently occurred to me that there is a connection between the persistent belief of some Americans that President Obama is not a natural born citizen and continuing debates about the Civil War.  Both go to fundamental questions about national identity, citizenship and governance.  Almost a decade ago I wrote a quirky piece entitled Exploring White Resistance to Racial Reconciliation. The article was triggered by what I regarded as a shocking action by Congress, namely, the rejection of a 1997 proposal by a dozen Democrat and Republican congress members calling on Congress to issue an apology to the descendants of kidnapped West Africans for their enslavement.  In 2008, after it became apparent that then Senator Barack Obama would be the Democrat’s presidential nominee, Congress quietly issued an apology for slavery.  Ironically, President Obama is not descended from West Africans, or to my knowledge, slaves.

In my article I speculated that this proposal was rejected because most Americans remain woefully ignorant about the causes and conflicting political agendas surrounding the Civil War.  This ignorance has been reinforced, I theorized, by popular culture, particularly films like the pernicious Birth of a Nation or Gone with the Wind, that romanticize the “lost cause.”  I offered many proposals, including better education about the Civil War, its causes and effects.

Why, you may ask, am I blogging about “old” news?  Well, a study funded by the Pew Foundation and released last month found that most Americans still consider the Civil War relevant to “American politics and political life.”  As the 150th anniversary of the War approached, two major newspapers, The Washington Post and The New York Times, featured series or periodic articles about the War.  The Post also hosts a blog, A House Divided, “dedicated to news and issues of importance to Civil War enthusiasts across the country and around the world.”  Even my local paper, The Baltimore Sun, has a series about the War.  Maryland, although a slave-holding border state, saw many battles during the War.  Further, Maryland considers the April 17, 1861 Baltimore Riot, when Union troops passing through the City were attacked by local confederate sympathizers, to be one of the War’s first conflicts.  I celebrate these educational efforts mentioned above because most Americans still do not fully understand the reasons for this war and why it continues to bedevil the Nation.

One of the most factious long-standing debates is over the causes of the War, namely, whether it was fought over slavery or states’ rights.  According to the Pew study, 48% of Americans surveyed think that states’ rights was the main cause of the War, while 34% said slavery was the cause. Documents linked in The Times, and essays by noted historians, acknowledge that states’ rights was an issue, but that the continuation of slavery was a primary triggering cause.   Even the State of Georgia, a former confederate state, finally conceded that slavery was the cause of the War.  Nevertheless, some Americans continue to reject the historical evidence.  For example, Baltimore Sun readers, in response to a columnist’s assertion that slavery was the cause of the Civil War, challenged and vigorously debated each other.  Commentators offer various, mostly benign, explanations for the reluctance to acknowledge slavery’s role in triggering the Civil War.

Still you might say, this too is “old” news that has nothing to do with President Obama, but I urge you to read on. Read More

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The Ministerial Exception Part III

In my previous blogs, I explained the basics of this judicially-created doctrine, and argued that the ministerial exception can’t really be justified by either the Free Exercise or the Establishment Clause. The main Establishment Clause justification for the ministerial exception is the fear that in adjudicating discrimination claims, courts will become entangled with theological questions or endorse one religious vision over another. In this last post, I want to argue that application of the ministerial exception can entangle a court in religious doctrine more than application of anti-discrimination law.

For the ministerial exception to apply, the plaintiff in a discrimination suit must be a “ministerial” employee. Who counts as a ministerial employee? That is the question before the Supreme Court in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC: is a teacher at a religious school who mostly teaches secular subjects but also leads students in prayer and teaches a religion class a ministerial employee? Courts do not simply defer to a religious organization’s characterization of a position, as it could insist that all its employees were ministers. Instead, courts have taken a functional approach, looking at the main duties of the employee, and essentially asking whether plaintiff’s job “is important to the spiritual and pastoral mission of the church.”

In order to decide whether a position is “important to the spiritual and pastoral mission of the church,” however, a court might have to delve into the religious beliefs of a particular religion. In ruling that a church’s music director was a minister, for example, the Fourth Circuit analyzed the religious significance of music. The plaintiff argued that she was not a ministerial employee because she merely taught people to sing and perform music. The court disagreed, noting that “music serves a unique function in worship” and concluding that the music director’s job was “an integral part of Catholic worship and belief.” In reaching this determination, the court did exactly what the Establishment Clause forbids: choose between competing religious visions. In the plaintiff’s vision of the Roman Catholic faith, music’s significance did not rise to the level of ministry, such that teaching it made her a minister. In the defendant’s vision, it did. The court essentially resolved a religious dispute about the role of music. Hosanna-Tabor potentially presents a similar risk. In determining whether Perich is a minister or not, the Supreme Court may end up resolving a religious dispute about the role of school teachers in Evangelical Lutheran Church schools.

Read More

7

Ministerial Exception Part II

In my previous blog on the ministerial exception, I explained the basics of this judicially-created exception. In this blog, I take a more partisan view, and argue that the religion clauses do not justify the ministerial exception. To the extent that church-clergy relations are protected, they should be protected under the freedom of association guaranteed by the Free Speech Clause.

Does the Free Exercise Clause require the ministerial exception?

The simple answer is: not after Employment Division v. Smith. Employment Division v. Smith held that as long as a law is neutral and generally applicable, it does not violate the Free Exercise Clause even if it imposes a substantial burden on religion. Smith itself upheld a law that made illegal a religious sacrament. Since few would dispute that anti-discrimination laws such as the Americans with Disabilities Act are both neutral and generally applicable, Smith should defeat any free exercise justification.

Nonetheless, lower courts have uniformly argued that Smith only applies to individual free exercise claims and not institutional free exercise claims. The arguments for this distinction are not persuasive, and they can be understood as the lower courts’ attempt to limit the impact of the unpopular Smith decision. For example, courts cite to a line of Supreme Court cases addressing church property disputes as precedent for church autonomy. Yet they overlook the Supreme Court’s most recent church property case, Jones v. Wolf, which actually applies a “neutral principles of law” approach more in line with Smith than the older cases that deferred to church hierarchies.

Doesn’t the potential entanglement with religion mean the Establishment Clause requires the ministerial exception?

The Establishment Clause may be violated if a court were to independently evaluate a minister’s spiritual or theological qualifications. For example, the court would act beyond its competence if it were to hold that a church was wrong to fire a choir director for her choice of music because the music chosen was in fact perfectly suitable for Sunday services. However, it is a mistake to assume that resolving anti-discrimination cases will lead courts to substitute their judgment for that of the religious institution on spiritual and theological matters. To start, many discrimination suits do not present any religious questions. In addition, this fear overlooks a substantial body of anti-discrimination law that ensures that courts assess only matters well within their competence. In other words, when evaluating a claim that a professor was wrongfully denied tenure, courts will consider objective data, but they will not second-guess the employer about subjective professional qualifications.

Take the retaliation claim at issue in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. In terminating Cheryl Perich, Hosanna-Tabor cited issues related to her health and its disability leave policy. No mention was made of any spiritual shortcomings. Therefore, as the Sixth Circuit concluded: “a trial would focus on issues such as whether Perich was disabled within the meaning of the ADA, whether Perich opposed a practice that was unlawful under the ADA, and whether Hosanna-Tabor violated the ADA in its treatment of Perich.”

Are churches never immune from anti-discrimination suits?

Even though the religion clauses may not justify the ministerial exception, the freedom of association might shield religious organizations from some anti-discrimination claims brought by ministers. Proponents of the ministerial exception argue that religious organizations must be able to freely select their ministers and religious leaders. The freedom of association protects that choice: especially after Boy Scouts of American v. Dale, the freedom of association protects the right of all associations, religious and nonreligious, to choose leaders who will properly represent and convey the association’s message, even if it means violating anti-discrimination law. In Dale, the Supreme Court allowed the Boy Scouts to discriminate on the basis of sexual orientation on the grounds that gay Scoutmasters would undermine the Boy Scouts’ anti-homosexuality message.

At the same time, Dale makes clear that an association seeking immunity from a discrimination claim must have a message that would in some way be impaired by compliance with that anti-discrimination law. Thus, a church may assert immunity from a minister’s discrimination suit only if it first argues that its religious tenets require that discrimination. Religious organizations whose beliefs are consistent with anti-discrimination law cannot complain that compliance interferes with their expression. Unless Tabor-Hosanna argues that a disabled minister will undermine its religious message, Perich should be able to sue the religious school for violating the American with Disabilities Act.

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UCLA Law Review Vol. 58, Issue 3 (February 2011)

Volume 58, Issue 3 (February 2011)


Articles

Good Faith and Law Evasion Samuel W. Buell 611
Making Sovereigns Indispensable: Pimentel and the Evolution of Rule 19 Katherine Florey 667
The Need for a Research Culture in the Forensic Sciences Jennifer L. Mnookin et al. 725
Commentary on The Need for a Research Culture in the Forensic Sciences Joseph P. Bono 781
Commentary on The Need for a Research Culture in the Forensic Sciences Judge Nancy Gertner 789
Commentary on The Need for a Research Culture in the Forensic Sciences Pierre Margot 795


Comments

What’s Your Position? Amending the Bankruptcy Disclosure Rules to Keep Pace With Financial Innovation Samuel M. Kidder 803
Defendant Class Actions and Patent Infringement Litigation Matthew K. K. Sumida 843


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(A few reasons) why Angela Onwuachi-Willig should be appointed to the Iowa Supreme Court

Various law blogs have mentioned the news that University of Iowa law professor Angela Onwuachi-Willig is on the short list for the Iowa Supreme Court

Angela is a leading scholar on topics of racial justice and critical race theory.  She is the only woman on the shortlist, as well as the only person of color

In addition, Angela is a longstanding supporter of LGBT rights who has written eloquently in favor of marriage equality and who signed a brief supporting marriage equality in Varnum v. Brien.

Given the backdrop of the current Iowa vacancies — they are the direct result of a homophobic right-wing smear campaign — I am thrilled to see Angela’s name on the shortlist.  I can think of no better way to respond to the anti-gay hate machine than to fill a court vacancy with a smart, articulate, energetic Black woman who is committed to LGBT rights — and to a principled and progressive feminist and antiracist legal philosophy as well.

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Gender Justice and Indian Sovereignty

It is my pleasure to invite you to Thomas Jefferson School of Law’s upcoming 10th Anniversary Women and the Law Conference, “Gender Justice and Indian Sovereignty: Native American Women and the Law,” on Friday, February 18, 2011.

This one-day conference will be held at TJSL’s brand-new state-of-the-art building in downtown San Diego, and will feature the annual Ruth Bader Ginsburg Lecture (founded in 2003 with generous support from Justice Ginsburg), by our Keynote Speaker, Interim Associate Dean Stacy Leeds, University of Kansas School of Law, former Justice of the Cherokee Nation Supreme Court and currently chief judge of three Indian Nation tribal courts. Her Lecture will be titled: “Resistance, Resilience, and Reconciliation: Reflections on Native American Women and the Law.” Read More

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Bright Ideas: Chamallas and Wriggins on The Measure of Injury

The Measure of InjuryToday’s Bright Idea comes from Martha Chamallas and Jenny Wriggins. Martha Chamallas is the Robert J. Lynn Chair in Law at the Ohio State University, Moritz College of Law and is the author of Introduction to Feminist Legal Theory, and Jenny Wriggins is the Sumner T. Bernstein Professor of Law at the University of Maine School of Law. Both Martha and Jenny have written extensively about some of the ways in which tort law fails to adequately respond to the experiences of marginalized groups such as women and racial minorities. In The Measure of Injury, published earlier this last year by NYU Press, the authors draw on their expertise (and a stunning array of mind-boggling real-life examples) to systematically demonstrate that tort law undervalues women and racial minorities, both historically and into the present. It’s an incredibly valuable contribution which also makes for a fascinating read. For the Bright Ideas series, we asked the authors a few questions about the book and also about their larger project.

1. As a general observer it seems to me that there is a moderately widespread public perception that race and gender inequalities are largely a thing of the past. What would you say in response to that idea?

The conventional wisdom about tort law certainly is that the field is gender and race neutral. In that respect, our book’s emphasis on gender and race bias cuts against the grain. In writing this book, we had to confront the reality that few people realize that tort law was historically marked by sharp distinctions based on race and gender. This lack of awareness contrasts with general assumptions about other parts of the legal system. There is a widespread perception, for example, that at one time the criminal justice system was racist. Historical inequalities in tort law, however, are just as striking and also merit attention, particularly since their legacies are imprinted in contemporary law. Read More

3

Virtual Perils of Cyber Hate and the Need for a Conception of Digital Citizenship

Although intermediaries’ services can facilitate and reinforce a citizenry’s activities, they pose dangers that work to undermine them.  Consider the anonymous and pseudonymous nature of online discourse.  Intermediaries permit individuals to create online identities unconnected to their legal identities.  Freed from a sense of accountability for their online activities, citizens might engage in productive discourse in ways that they might not if directly correlated with their offline identities.  Yet the sense of anonymity breeds destructive behavior as well.  Social science research suggests that people behave aggressively when they believe that they cannot be observed and caught.  Destructive online behavior spills offline, working a fundamental impairment of citizenship.

For instance, digital expressions of hatred helped inspire the 1999 shooting of African-Americans, Asian-Americans, and Jews in suburban Chicago by Benjamin Smith, a member of the white supremacist group World Church of the Creator (WCOTC) that promotes racial holy war.  Just months before the shootings, Smith told documentary filmmaker Beverly Peterson that: “It wasn’t really ‘til I got on the Internet, read some literature of these groups that . . . it really all came together.”  More recently, the Facebook group Kick a Ginger Day urged members to get their “steel toes ready” for a day of attacking individuals with red hair. The site achieved its stated goal: students punched and kicked children with red hair and dozens of Facebook members claimed credit for attacks.

Cyber hate can produce so much psychological damage as to undermine individuals’ ability to engage in public discourse.  For instance, posters on a white supremacist website targeted Bonnie Jouhari, a civil rights advocate and mother of a biracial girl.  They revealed Ms. Jouhari’s home address and her child’s picture.  The site showed a picture of Ms. Jouhari’s workplace exploding in flames next to the threat that “race traitors” are “hung from the neck from the nearest tree or lamp post.”  Posters included bomb-making instructions and a picture of a hooded Klansman holding a noose.  Aside from moving four times, Ms. Jouhari and her daughter have withdrawn completely from public life; neither has a driver’s license, a voter registration card or a bank account because they don’t want to create a public record of their whereabouts.

Search engines also ensure the persistence and production of cyber hate that undermines citizens’ capability to engage in offline and online civic engagement.  Because search engines reproduce information cached online, people cannot depend upon time’s passage to alleviate the damage that online postings cause.  Unlike leaflets or signs affixed to trees that would decay or disappear not long after their publication, now search engines index all of the content hosted by social media intermediaries, producing it instantaneously. Read More

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College Preparedness, Law, and the Structure of Standards

The Pathway of Preparedness

There is a current debate concerning whether the standard of college preparedness should be written into the structures of education law.  The college preparedness argument has been rising to the fore due to the revisions to the current version of the Elementary and Secondary Education Act-popularly known as the No Child Left Behind Act (NCLBA)-proposed in the Obama Administration’s “Blue Print for Reform.”  President Obama’s suggested revisions would replace the current NCLBA math, English language arts, and science proficiency standards as a means of evaluating schools with various other measurements, including whether students at schools are being prepared to be “college and career ready.”   The proposed change to the legal federal assessment standard is driven by the administration’s view that post-secondary education is essential to individual, communal, and national competitiveness in the Twenty-First Century. President Obama has announced the goal of regaining the global lead in the proportion of the citizenry obtaining post-secondary degrees by 2020.  In the realm of education, law is increasingly being relied upon to create incentives, structures and values which have traditionally been thought to be in the realm of private production.  The traditional conception of the public school is properly being recast from a provider of information and skill, to the central institution in communal renewal.

However, the federal focus on college preparedness, as with many educational initiatives of the Obama administration, has received criticism.  Critics of this emphasis argue that college preparedness is a one size fits all category which will inevitably stigmatize students without the ability or proclivity to attend college, and thus contribute to greater levels of failure and higher school drop out rates due to psychological pressures.   Such critics contend that there are many solid middle class trade careers of value which can be viable options for students without the skill level or desire for college.   However, defenders of college preparedness are often concerned with a specific context-the inadequacy of our educational systems to address the needs of dis-empowered minority groups, especially in the urban context. College preparedness champions often believe that critics do not fully understand and/or acknowledge the causation of the extreme racial disparities in educational outcomes.

Read More

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Guns & Katrina, Reconsidered

Remember when post-Katrina New Orleans turned into a teaching moment about the importance of using guns to protect yourself?  Over at the VC, David Kopel wrote (on September 5, 2005)

“Given the absence of a sufficient police presence in order to stop the looters, I strongly agree with Glenn Reynolds that such looters should be shot on sight by armed citizens. A citizen’s arrest and detention isn’t possible as a practical matter. Shooting the New Orleans looters is, under present circumstances, an appropriate response to the collapse of civic order, and a first step towards the restoration of that order.”

The necessity of shooting looters was widely-discussed.  Kerr, Solove, Volokh, Muller and I all dissented.  It’s worthwhile, then, to read this article looking back five years later at what actually happened after the hurricane:

“The narrative of those early, chaotic days — built largely on half-baked anecdote and unfounded rumor — quickly hardened into a kind of ugly consensus: poor blacks and looters were murdering innocents and terrorizing whoever crossed their path in the dark, unprotected city.

“As you look back on it, at the time it was being reported, it looked like the city was under siege,” said Russel L. Honoré, the retired Army lieutenant general who led military relief efforts after the storm.

Today, a clearer picture of post-Katrina violence is emerging, and it is an equally ugly one, including white vigilante violence, police killings, official cover-ups and a suffering population far more brutalized than many were willing to believe. Several police officers and a white man accused of racially motivated violence have recently been indicted in various cases, and more incidents are coming to light as the Justice Department has started several investigations into poststorm civil rights violations . . .

“One case is that of a former Algiers resident, Ronald J. Bourgeois Jr., who is white and accused of being part of one of the vigilante groups. He was recently indicted by the federal government on civil rights charges in the shooting of three black men who were trying to leave the city. According to the indictment, Mr. Bourgeois, who now lives in Mississippi, warned one neighbor that “anything coming up this street darker than a brown paper bag is getting shot.””

I don’t mean to blame any of the bloggers (like Glenn Reynolds or David Kopel) who called for looters to be shot on sight.  Obviously, they were writing about the facts as they knew them.  But the retrospective story is a sobering reminder that unleashing private violence – and encouraging armed self-help – doesn’t necessarily lead to the restoration of civic order.  It may, as it turns out, result in biased, erroneous, decision making and awful tragedy.